Mealey's Elder Law

  • May 14, 2021

    4 More Nursing Home COVID-19 Suits Remanded To State Courts

    Federal judges in California, New York and Florida recently joined the growing number of their colleagues in remanding COVID-19-related negligence, wrongful death, elder neglect and nursing home residents rights suits against long-term care facilities to state court, finding no federal jurisdiction under the Public Readiness and Emergency Preparedness (PREP) Act.

  • May 14, 2021

    Missouri Appeals Court: DNA Evidence, Expert Properly Admitted In Estate Dispute

    ST. LOUIS — A probate court properly admitted DNA evidence and expert testimony that established that the grandchild of a decedent is entitled to a share of an estate, a Missouri appeals court found May 11.

  • May 14, 2021

    Magistrate Stays Discovery On Insurer’s Duty To Indemnify Senior Living Facility

    WILMINGTON, N.C. — A federal magistrate judge in North Carolina on May 5 granted in part an insurer’s motion to stay discovery in its declaratory judgment lawsuit pending resolution of an underlying class action alleging that a senior living facility and its owners breached their contractual duties to provide adequate staffing and personal care and knowingly failed to comply with staffing and personal care obligations, staying discovery on the indemnification issue and allowing discovery to proceed on “coverage” issues and certain counterclaims.

  • May 14, 2021

    Virgin Islands Supreme Court Rules Visitor Appointment Required For Guardianship

    ST. THOMAS, Virgin Islands — A guardianship appointment for an allegedly cognitively impaired man must be vacated because the court did not appoint a visitor as required by the Virgin Islands Uniform Guardianship and Protective Proceedings Act (VIUGPPA), the Virgin Islands Supreme Court ruled April 29, remanding the case to the Virgin Islands Superior Court for appointment of a visitor and determination of whether the man had the capacity to express a preference when he granted his daughter a power of attorney and when his lawyer filed a motion stating that the man preferred his wife as his guardian.

  • May 13, 2021

    9th Circuit Asked To Overturn Garcia Dismissal, Find PREP Act Doesn’t Apply

    SAN FRANCISCO — Saying that a federal judge in California’s ruling that the Public Readiness and Emergency Preparedness (PREP) Act completely preempts state law claims and immunizes a senior living facility from liability in the COVID-19-related death of a resident “is the only one among more than 25 similar district court cases around the country to misconstrue the PREP Act in this manner,” the resident’s family in a May 11 appellant brief asks the Ninth Circuit U.S. Court of Appeals to reverse the dismissal and remand their suit, arguing that the act is not a complete preemption statute because it does not provide an exclusive federal cause of action for their claims.

  • May 13, 2021

    9th Circuit Asked To Overturn Garcia Dismissal, Find PREP Act Doesn’t Apply

    SAN FRANCISCO — Saying that a federal judge in California’s ruling that the Public Readiness and Emergency Preparedness (PREP) Act completely preempts state law claims and immunizes a senior living facility from liability in the COVID-19-related death of a resident “is the only one among more than 25 similar district court cases around the country to misconstrue the PREP Act in this manner,” the resident’s family in a May 11 appellant brief asks the Ninth Circuit U.S. Court of Appeals to reverse the dismissal and remand their suit, arguing that the act is not a complete preemption statute because it does not provide an exclusive federal cause of action for their claims.

  • May 12, 2021

    Minnesota High Court Disbars Attorney Citing Breach Of Fiduciary Duty As Trustee

    ST. PAUL, Minn. — The Minnesota Supreme Court on May 5 disbarred an attorney for actions including misappropriating trust assets in breach of his fiduciary duty as trustee, refusing to comply with court orders and failing to cooperate with the state Office of Lawyers Professional Responsibility investigation.

  • May 12, 2021

    Discovery, GDPR Raised In High Court Appeal In Age Discrimination Employment Row

    WASHINGTON, D.C. — In an April 26 reply brief supporting its petition for certiorari, a U.S.-based company tells the U.S. Supreme Court that an underlying Ohio state court discovery ruling against it would cause it to violate the stringent personal privacy protections of the European Union’s General Data Protection Regulation (GDPR), asking the high court to offer guidance as to how discovery in U.S. courts should interact with foreign privacy laws.

  • May 10, 2021

    Rhode Island High Court Voids Refusal To Apply Pension Payments To Restitution Debt

    PROVIDENCE, R.I. — The Rhode Island Supreme Court on May 5 affirmed a trial court’s judgment revoking the pension benefits of a retired state employee who was convicted of embezzling from his employer and awarded his wife benefits as an innocent spouse.  But it vacated and remanded the lower court’s ruling refusing to apply his pension contributions to his restitution obligations.

  • May 06, 2021

    Divided Georgia Panel Reverses Judgment Based On In Terrorem Clause

    ATLANTA — A man violated the in terrorem clause in his father’s trust by suing his sisters, claiming that they unduly influenced their father into changing his estate plan and, therefore, forfeited any benefits under the trust, a divided Georgia panel ruled April 27, reversing a trial court’s post-verdict final judgment imposing a $790,666 constructive trust in the man’s favor and remanding the case for further proceedings.

  • May 06, 2021

    Nursing Home Defendants Appeal Remand Of COVID Negligence Suit To 5th Circuit

    FORT WORTH, Texas —  The owners and operators of a nursing home on May 5 informed a federal district court that they are appealing to the Fifth Circuit U.S. Court of Appeals the court’s April 5 opinion and order remanding a COVID-19-related negligence suit against them to Texas state court.

  • May 06, 2021

    Finding No Health Care Liability Claim, Split Texas Court Vacates Dismissal

    DALLAS — A negligence action arising from the death of an assisted living facility resident who was injured in a fall while a facility employee pushed her along a public sidewalk sounds in premises liability and does not constitute a health care liability claim (HCLC) under the Texas Medical Liability Act (TMLA), the Fifth District Texas Court of Appeals ruled May 3 in a split en banc decision, vacating the trial court’s judgment dismissing the claims pursuant to the TMLA and remanding for further proceedings.

  • May 05, 2021

    Mississippi High Court Affirms Dismissal Of Will Challenge By Siblings As Untimely

    JACKSON, Miss. — A divided Mississippi Supreme Court on April 29 affirmed a lower court’s finding that the failure of a decedent’s daughter and sole heir to join her two siblings to a probate proceeding did not constitute concealed fraud that tolled the statute of limitations in the sibling’s action to challenge their father’s will.

  • May 05, 2021

    Some Claims Remain, Others Dismissed In California Retirement Community Fees Case

    SAN JOSE, Calif. — A financial elder abuse claim, a claim relating to compliance with sections of the California law governing continuing care retirement communities (CCRCs) and several claims under the unfair competition law (UCL) survive in a long-running case after a California federal judge on April 21 partly denied and partly granted motions to dismiss claims from residents’ third amended complaint (TAC) alleging that the owner of their CCRC failed to maintain a refund reserve of entrance fees as required by contract and state law.

  • May 05, 2021

    2nd Circuit Reverses District Court Dismissal Of Facilities’ CMS Rule Challenge

    NEW YORK — A challenge to a final rule promulgated by the Centers for Medicare and Medicaid Services (CMS) that does not require a registered nurse to participate in investigative surveys of nursing facilities initiated in response to complaints is independently rooted in the Medicaid Act and, therefore, not precluded by the Medicare Act’s review provisions, the Second Circuit U.S. Court of Appeals ruled April 27, reversing and remanding a federal district court’s dismissal of a suit filed by skilled nursing facilities seeking pre-enforcement review of the rule.

  • May 05, 2021

    7th Circuit Upholds Denial Of Age Bias Claims By Professor Removed As Chair

    CHICAGO — A university professor who was promoted to department chair, later removed and then denied appointment to full professor for approximately a year failed to show that his age or his refusal to implement an allegedly age biased policy led to retaliation, a Seventh Circuit U.S. Court of Appeals panel ruled April 26.

  • May 05, 2021

    Panel Affirms Lack Of Agreement To Arbitrate Claims Against Assisted Living Facility

    SACRAMENTO, Calif. — A trial court did not use “improper legal criteria” to conclude that the son of an assisted living facility resident was required to have a power of attorney for health care to sign an arbitration agreement on his mother’s behalf, a California appellate panel ruled April 28 in affirming the lower court’s denial of the facility’s petition to compel arbitration of an elder abuse and wrongful death suit against it.

  • May 03, 2021

    9th Circuit To Decide Government, Nursing Home Relationship In COVID-19 Death Suit

    SAN FRANCISCO — The family of a man who died in a nursing home after contracting COVID-19 argues to the Ninth Circuit U.S. Court of Appeals in an April 28 brief that a lower federal court properly remanded its wrongful death suit against a nursing home to a state court because the facility was not performing federal governmental functions.  The nursing home says in its appeal that the federal government and nursing homes have a special relationship in light of the national public health emergency.

  • April 30, 2021

    U.S. High Court Seeks Response In Suit Over Access To Public-Sector Employee Info

    WASHINGTON, D.C. — The U.S. Supreme Court on April 29 requested a response from Washington state officials who previously waived their right to respond to a petition for a writ of certiorari filed by individuals and a group seeking to replace incumbent unions representing public-sector employees and arguing that a state law meant to protect the elderly from financial crimes contains a provision that prevents them from being able to communicate with public-sector employees who serve the elderly.

  • April 30, 2021

    Washington Court Reverses Denial Of Statutory Award Increase To Surviving Spouse

    SPOKANE, Wash. — A Washington appeals court on April 22 reversed and remanded in part a trial court’s refusal to increase a surviving spouse’s statutory award, holding that the lower court employed the wrong statutory standard in a dispute between a widower and his stepson over a decedent’s will.